5D00-1336 5D00-1641 Tetrault v. Fairchild

SUPREME COURT CASES

Laws-info.com » Cases » Florida » Florida Fifth District Court » 2001 » 5D00-1336 5D00-1641 Tetrault v. Fairchild

State: Florida

Court: Florida Fifth District Court

Docket No: 5D00-1336

Case Date: 07/23/2001

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JULY TERM 2001

TINA M. TETRAULT and ARTHUR T. TETRAULT, Appellants, v. CASE NO. 5D00-1336 5D00-1641

JAMES A. FAIRCHILD, Appellee. _________________________________/ Opinion filed July 24, 2001 Appeal from the Circuit Court for Brevard County, Vincent G. Torpy, Jr., Judge. Richard A. Sherman and Rosemary B. Wilder, of Law Office of Richard A. Sherman, P.A., Fort Lauderdale, and Theresa K. Clark, of Law Office of Patricia E. Garagozlo, Melbourne, for Appellants. James I. Knudson and Jerry D. McGreal of Knudson & McGreal, P.A., Rockledge, and Edna L. Caruso, of Caruso, Burlington, Bohn & Compiani, P.A., West Palm Beach, for Appellee.

PER CURIAM Tina Tetrault, while driving a vehicle owned by herself and her husband, collided with a vehicle driven by James Fairchild, causing him injury. Fairchild sued and prevailed. We reverse.

Dr. Gordon was the radiologist assigned to the emergency room that received the

plaintiff on November 13, 1996. While being evaluated in the emergency room, x-rays were ordered and these were examined on the day of the accident by Dr. Gordon, who wrote a report opining that these x-rays reflected no visible injury. That was the extent of his involvement with the plaintiff. Plaintiff was given Darvaset and Valium for pain in the emergency room and released. Plaintiff subsequently began treatment with Dr. Seconi, a chiropractor. Dr. Seconi referred the plaintiff to Dr. Prusinski, a neurologist, who performed a 1996 MRI and whose report reflected only "bulging discs." The plaintiff continued treatment with Dr. Seconi through the end of 1997. In October 1999, the plaintiff began to experience increased pain and began to treat with an orthopaedic surgeon, Dr. Hanna. Dr. Hanna ordered a new MRI, which was performed in October 1999. The radiologist, Dr. Shapiro, found "No significant interval change" since the 1996 MRI and diagnosed a "bulging disc with a tear in the posterior annular fibers." Approximately three months before the second MRI was taken, the trial court entered its order setting various trial preparation cut-off dates and scheduling the trial for January 24, 2000. Disclosure of expert witnesses was required by October 15, 1999, and discovery was to be completed by January 10. The defendant took an up-dated deposition of the plaintiff on November 29 and, at that time, learned of the plaintiff's recent and ongoing treatment with Dr. Hanna and Dr. Shapiro. Previously, on September 21, 1999, the plaintiff responded to expert interrogatories identifying the various physicians and experts expected to testify. Rather than answer the interrogatories as posed, the restated answers created aggregate responses. The only one appearing to apply remotely to Dr. Gordon is the following: Doctors shall testify to their care and treatment of Plaintiff. Dr. Prusinski, Dr. 2

Seconi, and Dr. Fornus will also testify that plaintiff has sustained a permanent impairment as a result of the injuries sustained in the incident which is the subject matter of this lawsuit. They shall also testify as to the causation of the injuries for which they treated plaintiff. Further, they will testify as to diagnosis, prognosis and necessity for further follow-up care. [Emphasis supplied.] The defendant appeals the court's refusal to allow the defense a continuance in order to obtain a neuroradiologist to evaluate the 1996 and 1999 MRIs and critique the opinions of the current treating physicians concerning the plaintiff's condition. The testimony of Dr. Gordon was critical to plaintiff's case. Shortly before the trial, Dr. Gordon was contacted by plaintiff's counsel, was given the 1996 and 1999 MRIs and was asked to give an opinion concerning the injury they depicted. From the date of the plaintiff's accident until trial, Dr. Gordon was indicated as nothing more than the postaccident emergency room x-ray-reading radiologist who had written a report reporting no injury. Nothing in the answers to expert interrogatories and nothing learned by the

defendant through the taking of the plaintiff's deposition could have reasonably put the defense on notice that Dr. Gordon would be called to testify as an expert radiologist to give his evaluation of the two subsequent MRIs and render opinions based on them that the plaintiff had suffered a herniated disc caused by the accident. The defendant urges that the reference in the answer to expert interrogatories that Dr. Gordon would testify as to "causation" was sufficient because "certainly causation encompasses interpreting the MRIs." It is disappointing to see counsel make such an argument. The only other argument to be made is that the expert testimony of Dr. Gordon was harmless because it was "merely cumulative" to Dr. Shapiro's report. While the erroneous omission of cumulative evidence can be harmless, "harmless error" is a more difficult case to make when the testimony is not that of a fact witness, but instead is expert

3

testimony. Dr. Gordon was called by the plaintiff not to testify to his "care and treatment" of plaintiff but to render an opinion as a neuroradiologist based upon his review of MRIs supplied to him in plaintiff's counsel's office as to whether MRIs showed a herniated disc. It was reversible error to allow Dr. Gordon to offer expert testimony based on the October 1996 and October 1999 MRIs. See Suarez-Burgos v. Morhaim, 745 So. 2d 368 (Fla. 4th DCA 1999), rev. denied, 767 So. 2d 461 (Fla. 2000). REVERSED and REMANDED for a new trial.

GRIFFIN, J., concurs. HARRIS, J., concurs and concurs specially, with opinion. SAWAYA, J., dissents, with opinion.

4

HARRIS, J., concurring and concurring specially:

Case No. 5D00-1336 5D00-1641

While recognizing that the reasonable exercise of discretion by a trial judge must be upheld, such principle is inapplicable to this case. The primary obligation of any trial court, indeed its most basic responsibility, is to conduct a fair trial. It has no discretion to do otherwise. A ruling by the trial court which denies either party a fair trial cannot be excused based on the proposition that a trial court has exercised its broad discretion. If you disagree with this point, you need read no further. For those of you remaining, let us consider the facts of this case which made this trial so unfair that reversal is the only remedy. This action was proceeding to trial on the basis of a soft tissue injury. Indeed, Dr. Gordon, the radiologist who examined the x-rays taken of plaintiff at the emergency room, filed a report furnished to the defense indicating no visible injuries. Subsequently, Dr. Prusinski, at the request of plaintiff, performed the 1996 MRI and reported (this report was also furnished to the defense) that the MRI reflected only "bulging discs." Based on these reports indicating less serious injury, the defense chose not to depose either doctor. Instead, the defense retained Dr. Seig, an orthopedist, to conduct an IME. The trial court set trial for January 24, 2000, and required that all expert witnesses be listed by October 15, 1999. After that time, and unknown to the defense, the plaintiff had a second MRI performed by Dr. Shapiro. And after that time, Dr. Shapiro, a radiologist, filed his report based on the new MRI finding not only a bulging disc but also "a tear in the posterior annular fibers." And after that time, Dr. Gordon was retained to examine the new MRI and found a herniated disc. Without seeking court approval to amend the witness list, plaintiff added Dr. Hanna, who had referred the plaintiff to Dr. Shapiro, and Dr. Golovac, a "pain expert," to their list. But no mention was made that Dr.

Gordon who had previously been disclosed only as having read the emergency room xrays and as having found no visible injury would now be offered in a new capacity, based on his reading of the new MRI, to testify to a herniated disc. Dr. Gordon's new involvement was not revealed until his trial testimony. The dissent finds that it was the defense's own fault that it did not discover Dr. Gordon's new role because it failed to depose him. This is a strained notion of imputed knowledge. Lawyers should not be encouraged to take unnecessary depositions which tend only to run up the costs of an already expensive legal system. A deposition of Dr. Gordon shortly after the accident would have revealed that he read the x-rays and found no visible evidence of an injury. Since this was revealed by the report furnished to the defense, why depose Dr. Gordon? Further, a deposition of Dr. Gordon at any time before the running of the time in which experts could be added by either party would have revealed the same testimony. By permitting Dr. Gordon to testify at trial in a new

undisclosed capacity, the judge rendered the trial unfair. See Colonnell v. Mitchels, 317 So. 2d 799 (Fla. 2d DCA 1975) (The purpose of requiring that physical examinations and discovery be completed by the time of pretrial conference is to avoid surprise at trial. A medical witness changed his opinion based upon a physical examination that took place after the discovery cut-off. A new trial was ordered because of the surprise to the other side when the witness was permitted to testify to his changed opinion at trial.); see also Office Depot, Inc. v. Miller , 584 So. 2d 587 (Fla. 4th DCA 1991) (Failure to disclose to plaintiff the defense expert's changed opinion that there was no causal relationship between the accident and the injury after he previously opined that there was required a new trial.). Here, it was not the defense which violated the court's pretrial order by listing 2

witnesses after the time had run. And it was not the defense which disclosed a witness as having a limited and benign involvement in the case and then, after the running of the period in which to name experts, engaged that witness in a more lethal role. The courts should not permit trial by ambush regardless of which party is riding blithely through the pass. But there is another ruling by the court which had an even greater effect on the fairness of the trial. When the defense learned of the new MRI shortly before trial and saw the new experts the plaintiff belatedly added to its witness list, it moved to strike the new witnesses as being listed too late (the defense was ignorant of Dr. Gordon's new role). The court denied the motion to strike the newly added witnesses which, under the circumstances, was appropriate. But then the defense, accepting this ruling, asked the court for the opportunity to have its own radiologist examine the new MRI so that it could properly respond to the new witnesses and the new MRI concerning the new issue now being introduced into the trial. But the court, based on plaintiff's argument that since the defense already had Dr. Seig, the orthopedist who had conducted the IME, it was entitled to no other experts, denied the motion. The unfairness of this ruling and the prejudice it caused became apparent during plaintiff's cross-examination of Dr. Seig and plaintiff's closing argument. As predicted by the defense in moving for the opportunity to present its own radiologist, plaintiff's counsel was able to get Dr. Seig to admit that a radiologist is better equipped by training and experience to render opinions based on MRIs than is an orthopedist. Dr. Seig was further forced to admit that in his own practice he often relied on the opinions of radiologists relating to MRIs. This led to plaintiff's closing remark: Well it makes about as much sense to rely on a Dr. Seig interpretation, a guy 3

that is in court all of the time as an orthopedic doctor with no training in radiology on this type of MRI film, to say we should take and value his opinion above that of a board certified radiologist. The finding of the greater injury was preordained by the court's denial of the defense motion to be able to reasonably respond to new witnesses whose testimony was based on a new MRI which introduced a new issue and which the court belatedly permitted to be added shortly before trial. This made the trial unfair and this is beyond a court's discretion. Although this reversal for a new trial necessarily vitiates the attorney's fee also at issue in this case, because the issue may present itself again at the new trial, further discussion, even if not binding on the trial court, might be of some assistance to the court on remand.1 Neither the following nor footnote 1 should be considered as a criticism of the trial judge who was bound by existing appellate opinions. But some of the following discussion may be beneficial to the court at the new trial. In any event, it will advance the discussion started by Judge Schwartz and continued by Judge Casanueva that the application of the attorney's fees multiplier to offer of judgment cases is inconsistent with reason, fairness, and the very statute involved. What is a "reasonable attorney's fee" under the provisions of section 768.79, Florida

I also disagree with Dungan v. Ford, 632 So. 2d 159 (Fla. 1st DCA 1994), which was relied on in denying the defense the opportunity to challenge the reasonableness of some of the services performed by Dr. Seconi who, in attempting to support the reasonableness of his charges, testified that his treatment was both reasonable and necessary. There are two components to a reasonable fee -- a reasonable rate applied to justifiable services. By denying the defense the right to challenge the justification for the services, the court denied it the opportunity to challenge the reasonableness of the fee. While it is true that one is responsible also for the medical malpractice of a doctor whose services are required because of his negligence, he has never been required to pay the doctor for that privilege. Here, Dr. Seconi was not alleged by the plaintiff to be guilty of malpractice. Instead, the doctor was called as a witness to relate injuries to the accident and to testify as to the reasonableness of his charges for the purpose of assessing them against the defendant. As a witness, the good doctor is not immune from challenge. If the jury believes that the doctor provided unnecessary treatment either because of incompetence or in order to pad his bill, the jury may choose to disbelieve the doctor's testimony on other points as well. This is called impeachment and the truth cannot be found without it. One might reasonably ask, as between the plaintiff and the defendant, who should pay for the unjustified services. The answer is neither.

1

4

Statutes, when an offer of judgment is not accepted and the offeror prevails by more than 25%? Is an attorney's fee multiplier ever appropriate when fees are awarded under the authority of an offer of judgment statute?2 If so, may a multiplier be used to further enhance a lodestar which is itself greater than the agreed upon contingency fee?3 The supreme court has not yet answered these questions in the context of an offer of judgment case. In this case, plaintiff made an offer of judgment of $10,000 (policy limits) and recovered judgment in the amount of $159,158.22 (after PIP benefits were reduced) and was awarded $235,800 in attorney's fees when the court multiplied by two (2) a figure based on 393 hours reasonably expended at a reasonable hourly rate of $300. In Florida Patient's Compensation Fund v. Rowe , 472 So. 2d 1145 (Fla. 1985), the court initiated in Florida the concept of the contingency fee multiplier. Rowe held that a lawyer working under a contingency arrangement should be able to charge more as a "reasonable fee" than one who is guaranteed payment for his services because the lawyer working on a contingency will not always win. This argument has historically been used

We have given mixed, if not conflicting, signals. In Garrett v. Mohammed, 686 So. 2d 629 (Fla. 5th DCA 1996), we held that a multiplier may apply in offer of judgment cases. However, in Strahan v. Gauldin, 756 So. 2d 158, (Fla. 5th DCA 2000), rev. granted, (Table No. SC00-1155) (Fla. Feb. 2, 2001), and Internal Medicine Specialists, P.A. v. Figueroa, 781 So. 2d 1117 (Fla. 5th DCA 2001), we held that although multipliers may theoretically apply in offer of judgment cases, as a practical matter, if it can ever be justified by proof it will be extremely difficult to do so. The supreme court in Standard Guaranty Insurance Co. v. Quanstrom, 555 So. 2d 828 (Fla. 1990), emphasized that there are two "caps" on the amount of attorney's fees that can be awarded even under the malpractice statute then in effect. One cap is the amount agreed to by the parties. The other cap is on the amount of the multiplier so that the awarded fee "would not be significantly different in amount than it would be absent the statutory provision." The first cap limited the fee to the parties' agreement; the second cap was to insure in so far as reasonably possible that the awarded fee would reimburse plaintiff for the fee he obligated himself to pay his attorney.
3

2

5

to justify a contingency fee which greatly exceeds what would otherwise be a reasonable fee determined on the basis of the number of hours spent times a reasonable hourly rate. The purpose of the Rowe multiplier was to give the plaintiff's attorney, insofar as reasonably possible, the benefit of his contingency fee arrangements in order to encourage lawyers to continue to take cases on a contingency basis and thus better provide access to the court. But the mechanical application of the multiplier in all cases, particularly when applied in offer of judgment cases, will sometimes, as it did herein, create an excessive fee which might bring the court into the disrepute which concerned the Rowe court. In Standard Guaranty Insurance Co. v. Quanstrom , 555 So. 2d 828 (Fla. 1990), the supreme court cautioned against the mechanical application of the multiplier. The Rowe court recognized that attorney's fees must be determined on a case by case basis and that, because the paying party did not participate in the fee contract, the contingency fee arrangement, while it must be considered, may not be the sole basis of the fee award. The Rowe court, in establishing the multiplier in Florida, was aware that by multiplying an otherwise reasonable fee (again, the two components: justifiable time charged at a reasonable rate) by as much as three times depending on the likelihood of success when the case was taken, an extraordinarily high fee could be reached. It

therefore limited such fee, in any event, to the amount agreed upon by the contracting parties. In other words, the amount that the lawyer would agree to accept and the amount that the client would agree to pay for the representation was the maximum limit of the Rowe reasonable fee. Under Rowe , it was contemplated that the multiplier would only be employed if the 6

lodestar was less than the lawyer would receive under his contingency arrangement. For example, assume a 40% contingency fee and a recovery of $100,000. If the lawyer expended fifty hours at a reasonable hourly rate of $300, his lodestar fee would be $15,000, well less than his contingency fee. Assume a multiplier of 3 was justified, his "reasonable fee" would be $45,000. But since the parties agreed to a fee of only $40,000, Rowe limited the defendant to that amount. Assuming the lawyer spent only ten hours at the same reasonable hourly rate, even with the maximum multiplier, his fee would be only $9,000 and, under Rowe , he would be limited to this amount. Hence, the court was willing to go only so far in protecting a contingency fee, recognizing that even a contingency fee under some circumstances might be excessive. What if the parties' contract, as is common since Rowe , provides that plaintiff will pay a contingency portion of the recovery or the amount awarded by the court, whichever is greater? It is stating the obvious to say that this is a sham agreement. The only time a court will set the attorney's fee for plaintiff's attorney is when the defendant must pay it. Hence, the agreement actually means that while plaintiff has agreed to pay a set percentage on contingency, if the court elects to award more from the defendant, the plaintiff will pass it on to his lawyer.4 What would happen, do you think, if the lawyer, believing he had performed well in a case in which there had been no offer, asked the court to award him 40% against his client instead of the one third to which he had agreed? Perhaps we'll never know the answer. The supreme court in Kaufman v. MacDonald, 557 So. 2d 572 (Fla. 1990), did

In fact, that is precisely what the client agreed to in this case: "If any suit brought on my behalf entitles me to have the defendant pay my attorney's fees, then I agree to pay [my attorneys] those fees as determined by the court or the above contingency, whichever is greater."

4

7

answer affirmatively the certified question in a medical malpractice action concerning whether the trial court could award a fee with a multiplier which exceeded the contingency amount if the agreement provided that plaintiff would pay the fee awarded by the court if such fee was greater than the contingency. 5 The facts set out in Kaufman (and in the district court's opinion which certified the question) makes an analysis impossible. Kaufman did not indicate that it was receding from the principle set out in Rowe that the amount that plaintiff agreed to pay would determine the maximum "reasonable" fee. Did the Kaufman court assume that this alternative fee agreement really was intended to bind the plaintiff to pay whatever fee the court set or did it mean that the plaintiff and his lawyer can now "authorize" the court to assess against the defendant a fee greater than the plaintiff would be willing to pay for the same services? Is a fee for representing plaintiff reasonable when assessed against the defendant if the plaintiff would not be required to pay it himself? 6 There's nothing magic about getting the plaintiff to agree that defendant should pay an excessive fee. Is a boiler plate provision, one not intended to impose a fee greater than the contingency agreed to by plaintiff, sufficient to satisfy Kaufman if the awarded fee is more than a reasonable plaintiff would be willing to pay based on his
5

This was in the nature of a trick question because, under Rowe , the court could never award more than the plaintiff himself agreed to pay. Since plaintiff by this alternative fee agreement never intends to himself pay more than his contingency under any circumstance, under the reasoning of Rowe the limitation remains the same. The attorney's fee provision under section 768.69 was not intended to punish the nonaccepting party for refusing to accept the offer. It was simply intended to reimburse the other party for the cost of additional attorney's fees required because of the failure to accept a reasonable offer. It was not intended to increase the lawyer's fees from what he would have otherwise received. "There clearly was no intent on the part of the legislature to increase the amount of attorney's fees in this type action [prevailing party case] for the prevailing party's counsel." Quanstrom, 555 So. 2d at 831. It was certainly not the intent of the legislature to do so in offer of judgment cases.
6

8

understanding with his counsel? There is a further problem with recognizing the new boiler plate provision as really binding the plaintiff to pay the court awarded fee. Suppose the awarded fee is $100,000 which amounts to the total assets recoverable from the defendant. To literally enforce the parties' agreement would legitimize the definition of fee attributed to George M. Palmer: "A contingency fee is an arrangement in which if you lose, your lawyer gets nothing

Download 5D00-1336 5D00-1641 Tetrault v. Fairchild.pdf